Sexual Offences Flashcards
1
Q
What is the actus reus of rape?
A
- Defendant penetrates the victim’s vagina, anus or mouth with penis AND the victim does not consent
2
Q
What is the mens rea of rape?
A
- That the defendant intended penetration AND did not reasonably believe that the victim consented
3
Q
What is the actus reus of Assault by penetration?
A
- Defendant penetrates a victim’s mouth, anus or vagina with anything other than a penis
- Penetration is sexual
- The victim did not consent to penetration
4
Q
Mens rea for assault by penetration?
A
- D intended penetration
- D did not reasonably believe V consented
5
Q
Actus reus of sexual assault?
A
- D touches V
- Touching is sexual
- V does not consent
6
Q
Mens rea of sexual assault?
A
- D intentionally touches V
- D does not reasonably believe V consents
7
Q
What is the actus reus of causing sexual activity without consent?
A
- D causes V to engage in an activity
- Activity is sexual
- V does not consent to engaging in activity
8
Q
Mens Rea of causing sexual activity without consent?
A
- D intentionally causes V to engage in activity
- D does not reasonably believe V consents
9
Q
Is inappropriate touching required to satisfy the offence of causing sexual activity without consent?
A
NO
- Touching not required
- E.g. causing V to perform
10
Q
What does s.78 of the Sexual Offences Act 2003 mean?
A
Subjective Test
- What would a reasonable person consider sexual
- NOT what the defendant would find sexual
11
Q
Under what circumstances will it be conclusively presumed that a defendant did the relevant act and that the victim did not consent?
A
s. 76 SOA 2003
- Defendant intentionally deceived complainant
- Defendant intentionally induced complainant to consent to relevant act by impersonating person known personally to them
12
Q
EXAMPLE
- Jane and Michael begin having consensual sex with one another
- Jane begins to feel uncomfortable and asks him to stop during intercourse
- Michael proceeds to keep going for 10 more minutes until ejaculation
Has Michael raped Jane?
A
YES
s. 79(2) “penetration is a continuing act from entry to withdrawal”
- This means that if victim withdraws consent after initial penetration and defendant does not withdraw in reasonable length of time then rape occurs
13
Q
EXAMPLE
- David tells Carol she must have sex with him or she will die
- Carol understands this to be a total fabrication
- She has sex with him anyway because she finds him attractive?
Would this fall under a conclusive presumption of rape, as David tried to deceive Carol?
A
NO
- The victim must actually be deceived by defendant for s.76 to apply
14
Q
EXAMPLE
- Gordon tells Jane that in order to cure her fear of snakes she must have sex with him
- She believes him and has sex with Gordon
What is this an example of?
A
s.76(2)(a) SOA 2003 - Conclusive presumption
- Gordon intentionally deceived Jane as to the nature of the act
- He would be found guilty of rape
15
Q
When a conclusive presumption is proven is the actus reus or mens rea proven?
A
YES
- Both the actus reus and mens rea are proved
16
Q
What happened in the case of R v Devonald 2008?
A
- defendant intentionally deceived daughters ex boyfriend about purpose of act
- I.e to masturbate on webcam
- the purpose was not for D’s sexual gratification but to publicly embarrass the victim
- Conclusively presumed that victim did not consent therefore defendant is guilty
17
Q
What may a defendant do if there is an evidential presumption they committed the relevant act?
A
- To adduce sufficient evidence to raise an issue as to whether the actus reus or mens rea existed
18
Q
Where can the ordinary meaning of consent be found?
A
s.74 of the SOA 2003
19
Q
EXAMPLE
- John hits Lucy in the face
- He immediately apologises to her and she forgives him
- The two have sexual intercourse
- Jane reports to the police that she has been raped by John
Advise John as to his position he is in and his options.
A
- Upon appearing in court under s75(2) of the SOA 2003 and evidential presumption would be made that John raped Lucy as he used violence against her prior to sexual intercourse
- John may be able to produce evidence that she actually forgave him which would extinguish the evidential presumption
- The prosecution would then have to prove beyond a reasonable doubt the actus reus and mens rea of the offence
20
Q
Are threats of destruction to property or threats of emotional harm enough to satisfy an evidential presumption that there was no consent?
A
NO
- However, that does not mean the jury could not find there was no consent
21
Q
What did the case of R v G 2006 establish about consent?
A
- That consent of a child under 13 to sexual intercourse was meaningless
- Even where a defendant believed she was over 16
22
Q
What was established in R v Bree 2007?
A
- Case where defendant was on a night out with complainant
- The drank large amounts of alcohol
- Complainants memory was of the defendant washing her hair after vomiting then next memory of him have intercourse with her
- Defendant was originally convicted but this quashed after establishing that is was wrong for court of first instance to disregard that a heavily intoxicated person could still consent
- It is therefore the rule that a person may lose capacity to consent through intoxication but that does not mean heavy intoxication renders consents automatically void
23
Q
What was established in R v Olugboja 1982?
A
APPARENT CONSENT NEGATED BY THREAT
- Case where two Girls aged 16 and 17 had been offered a lift home by Mr. Law (co-accused)
- The girls refused and continued walking
- He followed them in the car picked up one of the girls and took her off and raped her
- He then picked up the other girl and took both girls back to his home where the defendant was
- The complainant told the defendant what had happened to her in the car
- He told her to take off her trousers
- She did and he had intercourse with her
HELD
- Although the complainant had not struggled or screamed, and no direct threat was made
- It was up to the jury on whether to to decide whether she had consented or submitted
- He was convicted
24
Q
What happened in Doyle 2010?
A
- Defendant convicted of raping 17yr old girlfriend
- Victim said they were no longer in relationship and she had not wanted to have sex with hum
- She testified that he forced her to have sex with him despite original protests
- She submitted after penetration to avoid making it worst
- On appeal D argued the trial judged failed to distinguish between submission and consent freely given by choice
HELD
- Conviction UPHELD
- Pitchford LJ stated sometimes need to distinguish between reluctant free choice and unwilling submission - this was not the case here
- Victim may have appeared to be consenting - perhaps through fear of more adverse consequences
25
What happened in R v Kirk 2008?
- 14yr old runaway girl approached appellant's minicab office for help
- She was hungry and without shelter
- He told her that he would give her £3.25 in return fir sexual intercourse
- She accepted and used money to buy food
HELD
- Conviction upheld
- Case suggests Court may be willing to derive no genuine consent where offer of sex is made in exchange for other benefit
- Jury will look at all pressures a victim faces and the broad circumstances in deciding whether there could be said freedom to make a choice
26
What was established in R v Robinson 2011?
- Underage girl may not have had capacity to understand full significance of what she was doing
- D argued there was no evidential basis for concluding that there might have been submission rather than positive consent
- Judge disagreed and said it was for the jury to decide between consent and mere submission
- The jury are entitle to find immaturity coupled with evidence of acquiescence rather than enthusiastic consent
- Particularly in contact of what could be perceived as grooming
27
Does grooming generally affect a victim's consent?
Not always, depending on circumstances
28
What happened in R v Ali 2015?
- Case where defendant was grooming young girls
- He fed them alcohol and drugs
- Court found consequence of grooming young and vulnerable girls for sexual compliance can mask true consent
- The jury may take in to account the evidence of a young and immature person who may not understand the full significance of what she is doing
- Groomed victim may have been manipulated so she is unaware or confused about the distinction between acquiescence and genuine agreement
29
If a mistake is not deemed to be a conclusive presumption of no consent under s.76 will that also apply to s.74?
NO
| - It may still be enough to make out no consent under s.74
30
What happened in R v Jheeta 2007?
- Jheeta and complainant had been in a relationship and having sexual relations
- Relationship ended and defendant sent threatening messages anonymously to complainant
- Complainant consulted D and he said he'd contact police
- For several years after D sent text messages to C pretending to be police
- Messages said C should have sex with D or be fined
- C had sex with D on more than 50 occasions which she attributed to 'police advice'
- The persuasion by D took form of pressures imposed on C by D's scheme
- Therefore, there was not free choice of consent by C for the purposes of s.74
31
If a victim has a mistaken state of mind when consenting what may happen?
- A defendant may be found guilty of a sexual offence
| - Victim's state of mind is what is the key factor
32
What happened in R (on application of F) v DPP 2013?
- DPP failed to prosecute case where former partner ejaculating inside her without consent
- The appellant had consented to sexual intercourse with the condition that her partner would withdraw before ejaculation
- The consent had a condition placed on it
- The partner despite this ejaculated inside her
- High Court found that because the withdrawal had been a crucial feature on which her consent was founded that the partner's deception deprived her of any choice
- Therefore it amounted to rape
33
What happened in Assange v Swedish Prosecution Authority 2011?
- Woman agreed to have sex with man if he wore a condom
- He then decided to penetrate her without a condom
- The jury was directed that they could decide this was done without consent
- He had done an act which the woman had not consented to
- This would extend to deliberately tearing the condom
34
What are the two situations where the statutory conclusive presumption of non consent not apply?
1. where there is no deception
| 2. where mistake it to the identity of a person not known to the victim
35
EXAMPLE
- Defendant's friends threaten to beat up Molly unless she has sexual intercourse with the D
- Out of fear of being physically hurt she complies
(a) Advise Molly as to her options.
(b) Would your answer be different if the defendant's friends turned up on Molly's doorstep and told her she must agree to sexual intercourse with the D or they would beat her up next week?
s.75(2)(b) of the SOA 2003
(a) Threat of violence against the victim immediately before the relevant act to the extent that she agreed would amount to an evidential presumption of no consent
- It does not matter with the defendant threatened the violence or someone else did
(b) If the threat is not immediate e.g. to happen instantaneously if she does not agree, then s.75(2)(b) would not apply.
36
What happened in R v B (2013)
- Case where schizophrenic defendant made complainant submit to sex on two occasions
- At trial a psychiatric testified that the defendant was suffering from deluded thoughts of sexual healing powers
- The victim testified she said 'no' more than once to the defendant
- The judge found that an objective test must be applied to the reasonable belief set out in the SOA 2003
- That meant no reasonable belief of a schizophrenic and therefore he was convicted of rape.
- It was to be taken into account the mental condition of D in sentencing however.
37
Why was s.76 not used in the Assange case?
- Despite arguably unprotected intercourse being different in 'nature' to protected intercourse
- Court found that s.76 should be given stringent construction because it is a conclusive presumption
38
How does s.74 apply in the Assange case?
- If AA had only consented to intercourse with Mr Assange if a condom was used, then no consent if he had intercourse without using a condom
- Applies where the condom may be removed or torn without her consent
39
What did the case of Assange say in relation to s.75?
- That it would be difficult to see how a person could have reasonably have believed in consent if the complainant alleges she was asleep or half asleep
- Prior consensual intercourse cannot show that she was, or that Assange could reasonably have believed, she was in her sleep consenting to unprotected intercourse
- The fact when she was in a state of full awareness that she allowed it to continue does not go to his state of mind or its reasonableness when he initially penetrated her
40
What were the conflicting opinions of MP George Galloway and Rape Crisis on the Assange case?
- George Galloway believed this was not rape and said at most was bad sexual etiquette
- He said if it is called rape then the term meaning of rape will be bankrupt of all meaning
- Rape cris said having consensual sex with a woman once does not give a man license to then have sex with her again at any given time and assume consent is given
The law seems to favour rape crisis' view
